Considered and decided by Toussaint, Chief Judge,
Kalitowski,
Judge, and Klaphake,
Judge.

U N
P U B L I S H E D O P I N I O N

KLAPHAKE, Judge

Appellant Judith Kempton challenges
her commitment as mentally ill. Because
there was no clear and convincing evidence showing that she posed a substantial
likelihood of physical harm to herself or others, we reverse.

D E C I S I O N

Appellant
claims that there is no clear and convincing evidence that she posed a
substantial likelihood of harm to herself or others. Findings of fact by the district court will not be set aside
unless clearly erroneous. In re McGaughey, 536 N.W.2d 621, 623
(Minn. 1995). The issue of whether the
evidence is sufficient to meet the standards for commitment is reviewed de
novo. In re Knops, 536 N.W.2d 616, 620 (Minn. 1995).

A
mentally ill person is defined as one with a substantial psychiatric disorder
who

poses
a substantial likelihood of physical harm to self or others as demonstrated by:

(1)
a failure to obtain necessary food, clothing, shelter, or medical care as a
result of the impairment; or

(2)
a recent attempt or threat to physically harm self or others.

Minn.
Stat. § 253B.02, subd. 13(a) (2000).

Appellant does not dispute the
determination that she suffers from a substantial psychiatric disorder, but
contends that there was no showing that she posed a substantial likelihood of
physical harm to herself or others.
This determination is crucial, because there is “no constitutional basis
for confining [mentally ill] persons involuntarily if they are dangerous to no
one and can live safely in freedom.” O’Connor v. Donaldson, 422 U.S. 563,
575, 95 S. Ct. 2486, 2493 (1975). Our
supreme court has emphasized that “the substantial likelihood of physical harm
must be demonstrated by an overt failure to obtain [necessities] * * *
or by a recent attempt or threat to harm self or others[;]” mere speculation is
insufficient. McGaughey, 536 N.W.2d at 623.

Based on
the court-appointed examiners’ opinions, the district court found that
appellant “is clearly psychotic to the extent that she is unable to provide for
her own fundamental needs or act in a reasonable fashion regarding her or
others’ safety,” and that she had no insight into her illness and no interest
in treatment. The record shows the
court-appointed examiners based their determination of harm on appellant’s
vulnerability due to her delusions, and they believed that her symptoms would
worsen until she obtains medication and treatment.

Neither
the findings nor the record, however, demonstrates the substantial likelihood
of physical harm required for commitment under Minn. Stat. § 253B.02,
subd. 13(a). There was no showing that
appellant was unable to provide for her own food, clothing, shelter, or medical
care, or that she threatened herself or others. Cf. In re Gonzalez, 456 N.W.2d 724, 729 (Minn. App. 1990)
(upholding commitment where proposed patient made threatening comments, could
not provide for own shelter, and acted in manner that could provoke attacks
from others). The supreme court has
made it clear that speculation that individuals may fail to obtain necessities
or attempt or threaten harm to themselves in the future is not sufficient;
instead, there must be an overt failure showing such likelihood presently
exists. McGaughey, 536 N.W.2d at 623; see
In re Nadeau, 375 N.W.2d 85, 87-88 (Minn. App. 1985) (where proposed
patient was appropriately dressed, not malnourished, and able to obtain shelter
and where witnesses agreed she did not pose danger to others despite her
delusions, commitment standards were not met).
Here, the district court’s findings and the record are devoid of any
such overt evidence.

The
dissent cites appellant’s refusal to accept treatment and medication for her
mental illness and the examiner’s prediction that her condition will worsen as
a result. But basing the harm factor
solely on appellant’s symptoms of mental illness, without more, would remove
the separate harm requirement and impermissibly base the commitment solely on
appellant’s mental illness. We
therefore conclude that the substantial likelihood of physical harm required
has not been met and reverse the district court.

Respondent
seeks a remand in the event that this court determines the findings are
insufficient. See In re Danielson,
398 N.W.2d 32, 37 (Minn. App. 1986) (remanding where evidence supported
commitment but findings wholly inadequate).
Because neither the findings nor the record supports commitment in this
case, a remand is not an appropriate disposition. Instead, if appellant’s condition so warrants, a new petition for
commitment may be filed at that time.[1]

Reversed.

KALITOWSKI, Judge (dissenting)

I respectfully dissent. Because the district court had clear and
convincing evidence from which to conclude that appellant posed a substantial
likelihood of physical harm to herself, I would affirm.

Commitment as mentally ill requires
a showing of a substantial likelihood of physical harm as demonstrated by “a
failure to obtain necessary food, clothing, shelter, or medical care” or “a
recent attempt or threat to physically harm self or others.” Minn. Stat. § 253B.02, subd. 13(a) (2000). The likelihood of harm cannot be speculative,
but the courts need not wait for the person to “either come to harm or harm
others before commitment as a mentally ill person is justified.” In re McGaughey, 536 N.W.2d 621, 623
(Minn. 1995).

It is undisputed that appellant
suffers from schizophrenia. The first
court-appointed examiner opined in her report that appellant is “currently
psychotic to the extent that she is unable to provide for her own fundamental
needs or act in a reasonable fashion regarding her or others’ safety.” The examiner testified that appellant
refuses medication for her mental illness because she does not believe she is
psychotic. Likewise, the second
court-appointed examiner reported that appellant has no insight into her illness
and no interest in treatment or medication.
He also explained that her paranoid delusions are significant enough to
place her “at risk for making decisions and taking actions that could be
harmful to herself or others.”
Moreover, he testified that without neuroleptic medication her condition
could worsen and develop into an intact delusional or hallucinatory system.

This evidence provided the district court with clear and
convincing evidence that appellant posed a substantial likelihood of physical
harm to herself by failure to obtain medical care for her schizophrenia. I would affirm the district court’s
commitment of appellant as mentally ill.

[1]Appellant also challenges the district court’s denial of
her request for a continuance so that she could present additional
witnesses. Because of our disposition
in this matter, we decline to address this issue other than to note that it was
within the district court’s discretion to deny the continuance motion. See Dunshee v. Douglas, 255 N.W.2d
42, 45 (Minn. 1977) (district court’s decision on continuance motion
discretionary; appellate court will not reverse decision unless it constitutes
abuse of discretion).